The Department published a final rule, “Tip Regulations Under the Fair Labor Standards Act (FLSA)” (2020 Tip final rule), in the Federal Register on December 30, 2020. See 85 FR 86756. On April 28, 2021, before the 2020 Tip final rule became effective, the Department announced a final rule delaying the effective date of three portions of the 2020 Tip final rule for 8 months, until December 31, 2021. See 86 FR 22597. This delay allowed the Department time to publish the final rule (CMP final rule) withdrawing and modifying the two portions of the 2020 Tip final rule related to the assessment of Civil Money Penalties (CMPs), see 86 FR 52973, and to publish the final rule revising the portion of the 2020 Tip final rule addressing the application of the FLSA’s tip credit provision to tipped employees who perform both tipped and non-tipped duties (Dual Jobs final rule).

The Department announced publication of the CMP final rule on September 23, 2021 (see 86 FR 52973). The CMP final rule adopts language upholding the Department’s statutorily-granted discretion with regard to section 3(m)(2)(B) CMPs and aligns the Department’s regulations with the FLSA’s statutory text. The CMP final rule also revises other CMP regulations addressing when a violation of section 6 (minimum wage) or section 7 (overtime) of the FLSA is “willful” and thus subject to a CMP. This revision further aligns the Department’s regulations with applicable precedent and how the Department actually litigates willfulness and provides improved guidance on circumstances where employers’ conduct may be willful. The CMP final rule also modifies regulatory provisions adopted in the 2020 Tip final rule addressing managers and supervisors. This revision clarifies that while managers or supervisors may not receive tips from mandatory tip pools, managers and supervisors are not prohibited from contributing tips to eligible employees in such pools.

On October 28, 2021, the Department announced publication of the Dual Jobs final rule. (See FR 2021-23446) This final rule finalizes the Department’s proposal to withdraw one portion of the Tip Regulations Under the Fair Labor Standards Act (FLSA) (2020 Tip final rule) (See 85 FR 86756) as well as finalize revisions related to the determination of when a tipped employee is employed in dual jobs under the FLSA or. The rule is effective December 28, 2021.

The remainder of the 2020 Tip final rule—consisting of those portions addressing the keeping of tips and tip pooling, recordkeeping, and minor technical changes made to update the regulations to reflect the new statutory language and citations added by the CAA amendments—became effective on April 30, 2021.

 

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